Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

For nearly two years, experts on Virginia's criminal justice system
have reviewed policies and procedures used in capital murder cases. The
goal: Not to eliminate the death penalty but to ensure that the process,
from identifying suspects to execution, is fair.

On Thursday, the Virginia Death Penalty Assessment Team reiterated
the need to adopt standards in the way police identify and interview
witnesses and suspects. It said the facts uncovered by prosecutors must
be available to the defense to bring to light any evidence that would
clear suspects. It suggested that the state should be required to
preserve biological evidence for the long term, and that DNA testing
should be an option for defendants who didn't have access to it at
trial.

The team recommended that the state set an execution date only after
all state and federal appeals are exhausted, and that inmates be allowed
a full year to file a habeas petition for relief.

These aren't the suggestions of a group of activist death penalty
opponents; these are common-sense recommendations that would go a long
way toward ensuring that the path to justice is transparent, that
investigations are thorough and fair and that inmates have the option of
forensic testing and time to appeal. These recommendations ultimately
are likely to save the state money at trial and in appeals.

The study was part of an American Bar Association initiative
assessing death penalty procedures in various states. The commonwealth's
team, led by University of Richmond law professor and former federal
prosecutor John Douglass, included criminal defense lawyers, a
commonwealth's attorney, judge, state senator and a former attorney
general and legislator.

Yesterday the American Bar Association released an assessment of
Virginia’s death penalty. A bipartisan team of prosecutors, defense
attorneys, a retired judge, a law school dean and former Attorney
General Mark Earley studied the Commonwealth’s use of the death penalty
and unanimously decided that “as long as Virginia imposes the death
penalty, it must be reserved for a narrow category of the worst
offenders and offenses, ensure heightened due process and minimize the
risk of executing the innocent.”

The team made several recommendations about improving pretrial and post-trial procedures on capital and felony cases.

Our recommendation is that Commonwealth end the death penalty altogether.

Since
the death penalty regained national use in the 1970s, Virginia has
executed 109 people, second only to Texas. Not because it reduces crime.
It doesn’t. Not because it saves money. It doesn’t, even without the
lengthy appeals process.

Not
because the public wants it. It doesn’t necessarily. Given the choice
between life without parole and the death penalty, more than half of
surveyed citizens choose imprisonment over the execution.

Even conservatives are quietly coming on board with abolishing the death penalty.

They
find it goes against their pro-life and small-government beliefs. They
understand that the justice system is by its nature flawed. And a flawed
system will make mistakes. Virginia almost executed an innocent Earl
Washington Jr. in 1985. Some would say the system worked as Washington
wasn’t put to death. Meanwhile, faulty state law kept Washington, a
mildly mentally retarded farm worker, in prison until 2001 for a crime
he did not commit.

Virginia
is more restrictive than other states in allowing capital murder
defendants access to evidence against them, the report says. It
recommends that the Virginia Supreme Court modify discovery rules,
including by requiring prosecutors to disclose the identity and any
prior statements of witnesses who will testify.

One
of the biggest concerns, the report says, is a state appeals process
that "emphasizes finality of convictions and death sentences over
fairness." It recommends giving Virginia inmates more time to file state
petitions and providing funding for defense attorneys to hire
investigators and other experts. It also suggests starting the
post-conviction review in the trial court rather than the Virginia
Supreme Court, which has granted evidentiary hearings in only five cases
since 1995.

Among the other recommendations:

—
Require long-term preservation of DNA evidence and allow the defendant
more opportunity for testing samples if there is evidence previous
testing was unreliable.

— Create a position for an appellate specialist within the public capital defender's office.

—
Revise jury instructions to make it clear that jurors never have to
return a death verdict and to clarify common misconceptions about
mitigating evidence.

—
Update the state's definition of mental disabilities, allow a pretrial
determination of whether a defendant is mentally disabled and ineligible
for the death penalty, and prohibit the execution of a defendant who
was suffering from a severe mental illness at the time of the offense.

Among
the recent changes lauded by the panel are the accreditation of the
state's crime labs and medical examiner offices and establishment of
regional capital defender offices.

A review of Virginia’s death penalty aimed at improving fairness
and accuracy calls for safeguards in the use of suspect lineups and more
access by defense lawyers to information to help them prepare cases.

The recommendations are among more than a dozen in the two-year
effort sponsored by the American Bar Association’s Death Penalty
Assessment Project that since 2003 has studied and reported on the death
penalty in 10 other states.

“If you’re going to have a death penalty, I think
everyone would agree we have to get it right,” Mark L. Earley, a former
Virginia attorney general and member of the Virginia Death Penalty
Assessment Team, said Thursday.

“This wasn’t a project about whether Virginia
should have the death penalty or should not have the death penalty. It
wasn’t a project about whether we should have a moratorium on the death
penalty,” Earley said.

“It was really a project that (considers) this:
If a state is going to have the death penalty, how can we be sure it has
integrity and that it is accurate and fair in all respects,” he added.

A top-priority change urged by the study is to
require law enforcement agencies to adopt the Virginia Department of
Criminal Justice Services’ model eyewitness identification policy for
suspect photo and live lineups.

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The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.